“It’s access to legal services, stupid!”

This past Thursday, I had the privilege of moderating a panel on consumer law at FutureLaw, a conference put on by CodeX The Stanford Center for Legal Informatics. Answering a thoughtful question from Ally Gerkman at Institute for the Advancement of the American Legal System (IAALS) I said that I strongly prefer the term “access to legal services”* to the term “access to justice.” Most of those in the room seemed to agree, but after the event I found a comment on Twitter that challenged the statement. I’ll explain here.

First, semantics: The traditional “access to justice” paradigm is an effort to provide access to the legal system to those to who otherwise couldn’t get such access as a result of income, social status, race, or other similar factors. These efforts are very important. Many have been and continue to be denied rights and protections that, at least aspirationally, our current legal framework should provide to all. Lawyers have a fundamental obligation to try to right those wrongs or address those needs wherever and whenever possible. However, for a variety of reasons, some of which are enumerated below, those who lack access to justice are very different from those who don’t have “access to legal services.” Because they’re different terms, with different meanings, they shouldn’t be confused or conflated.

Second, modest means or middle-income individuals may not necessarily want access to justice or even be seeking justice through the legal system at all. Beyond the fact that “justice” is a big and slightly amorphous term, those in the “access to legal services gap” just want a will, or an estate plan, or some limited advice on their employment contract or business, or any number of other things that don’t really involve a quest for or even a lack of justice. Nor do these needs even fit into the traditional access to justice paradigm. Trying to force these clients into an access to justice model is inefficient and ineffective.

Most significantly: the term access to justice invokes old thinking. New thinking is needed to solve the access to services gap.

The traditional access to justice paradigm involves full legal representation, provided largely in the traditional way, but for free. More lawyers providing more one-on-one legal services for free won’t solve the access to legal services gap. Modest means clients are different than the access to justice clients: they may not be able to afford traditional full representation legal services but they can pay something. Further modest means clients are middle income individuals, so they’re more likely to be better educated, to have better access to technology that would make them good candidates to self-educate, receive unbundled legal services delivered partially or fully though technology or online, or navigate the legal system with only limited guidance from an attorney. Indeed delivering legal services in a one-to-many fashion that looks very different from the traditional one-on-one pro bono representation seen in access to justice circles is very likely to be at least part of the solution to the access to services gap.

This new legal services paradigm has different goals for the outcome, nature, and duration of the engagement. Attempting to apply the traditional access to justice paradigm will not only be wrong for these clients it also won’t solve the problem. Legal services/legal aid has already existed for a number of years and hasn’t succeeded in serving these populations. This is not a criticism of the dedication or effort of legal aid. Rather, it’s an acknowledgement that what they do, they do well at the scale at which they do it. However, their model doesn’t necessarily and can’t be expected to scale to solve different problems for a greater number of people.

The challenge in understanding the difference between “access to justice” and “access to legal services” starts with semantics but it doesn’t end there. Those who don’t have service may not want or even need “justice” to solve their particular problem. Finally, to the extent that seeking “access to justice” means doing what’s always been done to solve the gap in access to legal services, the likelihood of success is low.

*Thanks to Jordan Furlong who initially introduced this distinction to me and framed it very excellently.